¶1dissenting:
¶2Upon this record I must conclude that it was error to dismiss the post-conviction petition without an evidentiary hearing. The trial court undertook to make a determination of the controlling fact of perjury of the witness, Stewart, without the defendant having had the benefit of cross-examination of the witness. The right to confront and cross-examine a witness is particularly significant and essential where the fact at issue must be decided upon the conflict between the affidavit made to the petitioner and the unsworn statement of the same witness made to the State’s Attorney.
¶3The fact that petitioner did not make a written denial of the allegations of the motion to dismiss does not resolve the conflict of fact. The fact that Stewart made conflicting statements is not the true issue.
¶4The fact that the trial court found that the testimony of Reading given at the post-trial hearing was not sufficient to establish perjury of Stewart is not res judicata of the issue of perjury found in Stewart’s affidavit filed with the defendant’s petition.
¶5I would reverse and remand with directions to hold an evidentiary hearing.